US should urge Manila to return to negotiation with China on South China

THE HAGUE - The United States should urge the Philippines to return to negotiation with China to settle the maritime territorial disputes in the South China Sea, said Abraham Sofaer, former legal adviser to the US State Department.

Speaking at a seminar in The Hague on Sunday, Sofaer said supporters of the Philippines' arbitration case, including the United States, believed that the action against China was justified by the United Nations Convention on the Law of the Sea (UNCLOS), and would advance the influence and effectiveness of international law, but to the contrary, the litigation has caused far more harm than good.

The Philippines has unilaterally filed an arbitration case against China over South China Sea disputes. China maintains that the tribunal has no jurisdiction over the case, which is in essence about territorial sovereignty and maritime delimitation.

Sofaer, the 78-year old former federal judge and expert on international law, pointed out that one of major problems with the case is jurisdiction.

According to UNCLOS, an arbitral tribunal cannot rule on sovereignty disputes, and China has excluded such disputes from mandatory arbitration.

Therefore, it is simplistic and wrong to assume that China would agree to submit to the arbitration on the Philippines' claims, Sofaer said.

Sofaer was a professor at Colombia University Law School before undertaking the position as a legal adviser to the US State Department from 1985 to 1990. He currently serves as a senior fellow in Foreign Policy and National Security Affairs at the Hoover Institution, Stanford University.

Citing the territorial disputes between the United States and Canada, he also questioned the necessity of the Philippines' claims, saying the notion that border disputes of this sort have deadlines, or should have deadlines, has no basis in international practice or the realities of international relations.

Sofaer said as a legal advisor to the State Department he learned that the United States had 10 separate border disputes with Canada, which had existed since the War of 1812 - a military conflict between the United States and Britain - adding that only two cases were submitted to arbitration with the consent of both parties.

As for the remaining disputes, he said, each side was maintaining its position, and was operating on a basis the other found acceptable.

China has been dealing with its border disputes on land in a very professional and thorough way, Sofaer said. "So, it is also shortsighted I think to assume that no hope exists for multilateral diplomacy on maritime disputes."

"The real-world consequences of the Philippine case have already been seriously adverse to the interests of all parties, and are likely to get even worse."

Pushing states into mandatory arbitration of highly political issues where a credible basis exists for their refusal undermines the progress of developing effective international law, according to Sofaer.

He said that the United States could play a more meaningful, constructive role in settling disputes in the region rather than its current repeated calls on China to support "the rule of law."